How the 14th Amendment could block Donald Trump from becoming president

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Former President Donald Trump speaks at his Mar-a-Lago estate Tuesday, April 4, 2023, in Palm Beach, Fla. (Evan Vucci/AP)
Former President Donald Trump speaks at his Mar-a-Lago estate Tuesday, April 4, 2023, in Palm Beach, Fla. (Evan Vucci/AP)

Equal protection under the law. That's the best-known part of the 14th Amendment to the Constitution.

But there's a little-known part of it that’s urgently relevant now.

Section 3 of the 14th Amendment to the Constitution bars from office any public official involved in an insurrection.

"This was written to keep former officials who joined the Confederacy from returning to office unless Congress gave them a waiver or exemption," Gerard Magliocca, professor of law at Indiana University, says.

Can legal reasoning withstand political reality when it comes to Donald Trump?

Today, On Point: How the 14th Amendment could block Donald Trump from becoming president.


Gerard Magliocca, professor of law at Indiana University. Author of "American Founding Son: John Bingham and the Invention of the Fourteenth Amendment."

Michael McConnell, professor and director of the Constitutional Law Center at Stanford Law School. Senior fellow at the Hoover Institution.

Also Featured

Noah Bookbinder, president of Citizens for Responsibility and Ethics in Washington (CREW).


Part I

MEGHNA CHAKRABARTI: On January 20, 2017, Donald Trump stood on the steps of the Capitol and swore to protect the United States Constitution in the presidential oath of office.

CHIEF JUSTICE JOHN ROBERTS: Please raise your right hand and repeat after me. I, Donald John Trump, do solemnly swear.
DONALD TRUMP: I, Donald John, do solemnly swear.
ROBERTS: That I will faithfully execute.
TRUMP: That I will faithfully execute.
ROBERTS: The office of president of the United States.
TRUMP: The office of president of the United States.
ROBERTS: And will to the best of my ability.
TRUMP: And will to the best of my ability.
ROBERTS: Preserve, protect, and defend.
TRUMP: Preserve, protect, and defend
ROBERTS: The Constitution of the United States.
TRUMP: The Constitution of the United States.
ROBERTS: So help me God.
TRUMP: So help me God.
ROBERTS: Congratulations, Mr. President.

CHAKRABARTI: Four years later, on January 6, 2021, Trump, who had lost his 2020 bid for re-election, stood before a rally and inflamed his supporters with lies and untruths about the 2020 election. He claimed he had won. He did not. He claimed the election was stolen. It was not. And he told the gathered thousands that the Constitutionally mandated count of electoral votes – happening at that moment in the Capitol – had to be disrupted by any means. He invoked a version of “we had to destroy the village in order to save it” – by bewitching the crowd with the poisoned logic of "in order to protect the Constitution we must violate it."

TRUMP: And Mike Pence, I hope you're going to stand up for the good of our Constitution and for the good of our country. And if you're not, I'm going to be very disappointed in you, I will tell you right now.

CHAKRABARTI: Trump then told his supporters to march to the Capitol, saying, “We will fight like hell”

TRUMP: Our country has had enough. We will not take it anymore. And that's what this is all about.

CHAKRABARTI: Approximately one hour later, rioters overwhelmed Capitol Police, breached the Capitol building, forced the stoppage of the electoral count, stormed the Senate and House chambers, and caused members of Congress to flee for their lives.

RIOTERS: Get back, ladies! Get back!
OFFICERS: We just had protesters … breached the line. We need backup.

CHAKRABARTI: Trump was in the White House, watching. Though he had sworn to preserve the constitution of the United States, he did nothing in his power as president to protect it. He simply watched the violence unfold on television.

Then at 4:17 in the afternoon, after panicked pressure from advisors surrounding him, Trump released a prerecorded video expressing his love for the mob that had invaded the capitol.

TRUMP: I know your pain. I know you're hurt. We had an election that was stolen from us. It was a landslide election and everyone knows it, especially the other side, but you have to go home now. We have to have peace. We have to have law and order. We have to respect our great people in law and order. We don't want anybody hurt.

It's a very tough period of time. There's never been a time like this where such a thing happened, where they could take it away from all of us — from me, from you, from our country. This was a fraudulent election, but we can't play into the hands of these people. We have to have peace. So go home. We love you. You're very special. You've seen what happens. You see the way others are treated that are so bad and so evil. I know how you feel, but go home and go home at peace.

CHAKRABARTI: This is On Point. I'm Meghna Chakrabarti. The Constitution, which Trump had sworn to preserve and protect, contains this clause. It is Section 3 of the 14th Amendment. “No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”

So does the 14th Amendment, Section 3, apply to Donald Trump? Gerard Magliocca is a professor of law at Indiana University's School of Law, and he's the author of a number of books, including American Founding Son: John Bingham and the Invention of the 14th Amendment.

Professor Magliocca, welcome to On Point.

GERARD MAGLIOCCA: Thank you, Meghna. It's nice to be here.

CHAKRABARTI: Does Section 3 of the 14th Amendment apply to Trump?

MAGLIOCCA: I think that it does. I think that January 6 constitutes an insurrection within the meaning of Section 3. I think that former President Trump engaged in insurrection before and on January 6, and that the provision covers him because of the oath that he took, which you played, and because he is covered as an officer of the United States, and he is seeking an office under the United States.

CHARABARTI: So therefore, to put it finer point on it, you say that the Constitution mandates that Donald Trump should not be able to hold office again in this country.

MAGLIOCCA: Yes, that's correct. Now it's an unfamiliar territory for all of us. The provision was dormant for 150 years after the Civil War. So it's understandable that people are asking a lot of questions and are skeptical about certain aspects of applying this provision to what happened on January 6 or to Donald Trump. But I hope that in the coming months, as we learn more about what section three was about, and more about how it relates to what happened on January 6, that people will be persuaded that this is the correct conclusion.

CHAKRABARTI: Hmm. Well, I just highlighted some of the things that Trump said on January 6. There's also, of course, all that he did in the months between November, December and January between 2020 and 2021. Well, many of which he's under indictment for now, but we'll, we'll talk about that in a second. So let's do exactly what you said, Professor, and learn more about the story of Section 3 and what's in it. First of all, remind me of its exact date of ratification in the Constitution, because it is a post Civil War amendment.

MAGLIOCCA: Right. So Section 3 is ratified in 1868 and is really the embodiment of Lincoln's pledge in his second inaugural, "with malice toward none, with charity for all." And I say that because the framers of the amendment did not throw all of the former confederate leaders in jail, take away all of their property or all of their rights. They put in this one modest limitation. They couldn't serve in office, and they coupled that with the idea that there would be generous amnesty given to people who showed that they deserved it.

And within a few years, most of the former Confederates, except for the top leadership like Jefferson Davis, were given amnesty. And so it was really a very generous and not a punitive measure in keeping with the spirit of reconciliation. So that is kind of what we're looking at only excluding Donald Trump from office, not looking at least under the constitutional provision to a criminal punishment or some other punishment.

CHAKRABARTI: Now what's interesting to me is that, of course, the 14th Amendment as a whole comes after the Civil War and its most famous or best known part would be the equal protection under the law part applying to the, you know, newly freed, formerly enslaved people of the United States. But why was, I mean, why was this part sort of tacked on? Was there evidence, fear, or just knowledge that the very same insurrectionists, the very same Confederates who had seceded from the Union were going to serve again in former Confederate states?

MAGLIOCCA: Yes, so there were elections held throughout the South in 1865, and many of the former officials who had then served the Confederacy were elected and sent back into their old positions, either in Congress or in state government. And so the Republicans in Congress at the time thought this was unacceptable that these people could not be trusted with power again unless they showed some repentance or some sort of apology for what they had done.

It's also worth pointing out, though, that members of Congress in framing Section 3 did say that they intended the provision to apply to future insurrections, not just the one that had just occurred. So, there was sort of a backward looking aspect to it, but there was also a forward looking aspect to it.

CHAKRABARTI: I want to know the exact story behind that, because I understand there was a particular single word that was in an original draft of Section 3 that was then struck from what we've finally ended up in the Constitution that implied that they were indeed looking forward to the consequences of potential future insurrections

MAGLIOCCA: Right, so in a very early version of Section 3, the phrase, "the late insurrection" was used instead of "insurrection." And of course, "late insurrection" meant only the Civil War, but that didn't survive very long. And the rest of the time their provision was under consideration only the term insurrection was used. And again, with the thought that it was a general provision, like much of the 14th Amendment is general in its phrasing, it applies to the circumstances they faced in 1868, but it also was meant to speak to the future. Things like equal protection and due process of law, for example. So Section 3, in that sense, is similar to Section 1 in speaking in more general terms about the nature of what the amendment is supposed to do.

Part II

CHAKRABARTI: Today we're learning more about Section 3 of the 14th Amendment of the United States Constitution and how it applies to Donald Trump. Gerard Magliocca is with us today. He's professor of law at Indiana University and author of American Founding Son: John Bingham and the Invention of the 14th Amendment.

Professor, can you tell me a little bit more, are there more specific aspects to the story of how that word recent got removed in terms of recent rebellions or insurrections? Is there historical documentation of the discussion that happened around it? Sort of, let me put it this way, who was there in the room?

MAGLIOCCA: Well, the initial idea for Section 3 had to do with taking away the voting rights of all former Confederates for a period of five years. And so it was in that phase of the discussion that the phrase "late insurrection" was referred to because it was talking about taking away voting rights for a specific group of people that had engaged in a specific set of actions. But that draft first was changed even before it got all the way through the House of Representatives. And then second, it was replaced entirely in the Senate, which threw out the idea of limiting voting rights as being too punitive, and focused instead on exclusion from office, and further narrowed that to say only officials who had engaged in oath breaking would be excluded from office, not just anybody who was part of the Confederacy.

That is to say, if someone had been a soldier in the Confederate Army and had never served in office before, they were not excluded from running for office by the 14th Amendment. It was only people who had been officials and had betrayed their trust by joining secession that they were excluded. So it was pretty early on decided that we should focus on office holding and that it should be a general provision rather than one focus specifically on the Confederacy.

CHAKRABARTI: Now, uh, if I understand correctly, Section 3 is written originally by Senator Jacob Howard of Michigan, is that right?

MAGLIOCCA: That's correct.

CHAKRABARTI: And so who is he and why is that significant?

MAGLIOCCA: Well, so he was important in explaining the 14th Amendment, more generally, to the Senate. He gave a very famous speech discussing the first section, which had to do with, for example, equal protection and the privileges or immunities of citizens and how that might apply to the Bill of Rights. He was considered somewhat more of an authority figure in some respects than just your average senator, let's say. But, in this case, he introduced Section 3 and basically had on behalf of, more or less, his colleagues. And so, there's a connection there between Section 3 and Section 1 that wouldn't otherwise be present.

CHAKRABARTI: And then tell me about the man in the title of your book, John Bingham.

MAGLIOCCA: Well, John Bingham was the principal drafter of Section 1. He wrote the Equal Protection Clause, for example. Now, he didn't write Section 3, but he did go out and defend Section 3 very emphatically in speeches during the 1866 election campaigns. And one of the things he made clear was that it applied to any person in any position — that is any person who broke his oath was excluded from holding any position because they had, in effect, committed a kind of, some people describe it as moral perjury. Not legal perjury in the criminal sense, but they had just betrayed their trust.

So, and Bingham also said, look, these are the most generous terms ever given to people who have engaged in insurrection or rebellion. If you look to past examples, say in England, you know, people were executed for engaging in insurrection and that sort of thing. And he said, this is a measure of reconciliation, and look at how modestly or how well we're treating the people who betrayed their trust to America. So I think it's in that spirit that we have to remember, this is not a criminal sanction. It doesn't require proof beyond a reasonable doubt as a result. It is a civil sanction limited to serving in office only.

CHAKRABARTI: Yes, and so I think this is really important because you're right the text does say that you can never hold office again, with the implication being that while not a legal or criminal act, at least, or not seen in terms of the 14th Amendment, that to engage somehow in an insurrection against the United States is of such a high moral crime that it permanently disqualifies you from engaging in any sort of political leadership in the country, forever, Professor?

MAGLIOCCA: Well, until you can persuade two-thirds of each house of Congress to give you amnesty or a waiver. And indeed, Congress did give many people amnesty or waivers in the period after the Civil War. Within about five years, most of the former Confederates, or officials who had joined the Confederacy, were again able to serve because they had done some things to show that they were more or less a disavowed secession and were willing to go back and support the United States government fully. So it's possible that someday, people involved in January 6 will get amnesty, depending on how they act and what they do. But, yes, the idea was, you were presumed to be ineligible, and then you had to persuade a supermajority of each house of Congress to let you back in, which is a significant request.

CHAKRABARTI: Now, let's dig a little bit deeper into the specific language in Section 3. So we talked about the sweeping nature of it in terms of who would fall under Section 3. It's essentially anyone at any state or federal level of government who has previously taken, it says, an oath to support the Constitution of the United States. So, there are some, I suppose, state and local level positions or many of them that wouldn't apply. But nevertheless, that seems quite sweeping. Why did the writers of the 14th Amendment, of Section 3, feel that it had to apply to anybody in the country who had taken an oath to protect the Constitution?

MAGLIOCCA: I think first because they thought that taking an oath was a special act, that it was something to be taken very seriously, and that draws on other language in the Constitution that emphasizes the importance of oaths including the presidential oath of office. Secondly, they were trying to root out former confederates from government positions — root and branch, you might say, and to do that they had to take a broad approach at least to which officials would be excluded or from what positions they would be excluded, and that would include being a state governor, being a state sheriff, that sort of thing.

Now, of course, you could say that the part of it is kind of what kind of harm do you think that insurrectionists in office might do in the future. The other would just be the thought that they just simply didn't deserve to hold office because of what they had done. Now, in the case of the presidency, it's a lot more about the potential harm that could be done in the future as against, say, a local sheriff who can't do all that much harm if allowed to remain in office. So I think the two considerations are there for Donald Trump, but probably more about what might happen if he returns to office rather than sort of what he did to forfeit his right to run for office.

CHAKRABARTI: Now in a few minutes we're going to be adding another voice to the conversation that encourages exercising caution when applying the 14th Amendment Section 3 in particular to Donald Trump. But Professor Magliocca, I want to just again dig into the specificity or what the meaning of specific pieces of language in Section 3 are. Because of course one of the hallmarks of the Constitution that contributes to its longevity, but also the battles that happen over it, is the language in many places is quite vague. So people who are trying to interpret the Constitution are left to interpret the text, the intent, and the application in modern times. So, in Section 3, it says, "no person," blah blah blah, "who shall have engaged in insurrection or rebellion." That word "engaged," how should we read that?

MAGLIOCCA: So there are cases from after the Civil War that discuss that and some other legal authority. So one way of understanding it is to say that you have to take an action that furthers the insurrection. Another way that it was described was that you have to contribute something useful to the insurrection. And both of those are fairly broad ways of looking at it, though they're not identical. And the breadth makes sense for two reasons.

One, as you said, the sort of offense of insurrection is grave. So we might be more willing to have a broad standard or a broad net for people who engage in that kind of conduct. But the other is, again, it's not a criminal punishment. You know, if we have a criminal punishment, we are more concerned about having broad standards of liability. When it's only an exclusion from office, we're not as concerned about that. We're more interested in trying to further whatever purpose the language has.

CHAKRABARTI: So then I guess it's difficult to tell, again, like you said, specifically what they meant by "engaged." I think maybe the vagueness is part of the point. But what about this next part that comes about giving "aid or comfort to the enemies thereof," "thereof" meaning the constitution. What might they have intended to mean around "aid or comfort?"

MAGLIOCCA: So there are different opinions about that. One is that it's just another way of saying the same thing, that these terms "engage," "incite," "aid and comfort" were all used interchangeably during the period of the Civil War to describe the kind of conduct that would make you an insurrectionist. Another thought is that that language applies only to traitors because it draws on the language of treason. You know, when we say "aid and comfort," often we're talking about someone accused of treason. And there was an active discussion about whether maybe a few people like Jefferson Davis ought to be prosecuted for treason in 1866.

So they might have just been adding that language in to cover that possibility. So either of those is possible, or the third option I should mention is you could say that "aid and comfort" is broader, that in fact if I'm cheering you on while you're doing something, I'm giving you "aid and comfort" and that might be different than directly participating. But my own view is that essentially, "aid and comfort" is really just a kind of interchangeable term with "engage" and there isn't all that much difference between the two phrases.

CHAKRABARTI: Okay, then, Professor Magliocca, what parts of Donald Trump's actions and or his statements from Election Day, November 2020 through — I would even say the inauguration of Joe Biden on January 20th, 2021 would you would think would apply such that he should be barred from office by dint of Section 3 of the 14th amendment?

MAGLIOCCA: Well, first there's the whole course of conduct leading up to January 6 that can be described as engagement in the insurrection. More specifically, there is the speech of January 6 itself, which a federal district court has said could be understood as incitement, even under the very rigorous standard that we apply to incitement under the First Amendment. Third is the fact that the president did nothing to stop the violence once it was underway. And that can be understood as contributing something useful to the insurrection. That is, the lack of action there was a contribution of something useful or important to the insurrection. And I think just stepping back in a broader sense, it's hard to understand the events of January 6 without seeing Donald Trump's central role.

You know, there is one person who has been disqualified from office under Section 3 for participating in January 6. He was a county commissioner in New Mexico who was part of the crowd. He didn't engage in violence. He just trespassed onto the Capitol grounds, but he was disqualified. Now it's hard to imagine that the only person who should be disqualified from office for January 6 is a county commissioner from New Mexico. And if someone like that engaged in insurrection, it would seem like the person who sort of the central moving force in all of this also ought to be said to have engaged in insurrection and therefore be disqualified.

CHAKRABARTI: Well, Professor Magliocca, stand by here for just a moment, because now we're getting into the territory of, okay, let's presume for a moment that there's enough consensus around Section 3 of the 14th amendment that the belief is that Trump is — has self disqualified from office. How would that apply, you know, now in the United States and what could potentially be the consequences of that?

So I want to bring Michael McConnell into the conversation. He's professor and director of the Constitutional Law Center at Stanford Law School. He's also a senior fellow at the Hoover Institution, and from 2002 to 2009, he served as a circuit judge on the United States Court of Appeals for the 10th circuit. Professor McConnell, welcome to you.


CHAKRABARTI: So overall, just give me your brief assessment of what Professor Magliocca has said thus far about the applicability of Section 3 to Donald Trump.

MCCONNELL: Well, I don't think there's any serious argument that Section 3 does not apply prospectively so I agree with much of what Professor Magliocca has been saying. But there are any number of other questions of interpretation that I think are much more difficult and even dubious. I guess my main sort of underlying disagreement is with Professor Maglioca's commenting several times that this is only a civil sanction, and therefore it can be given a broad interpretation, unlike, say, a criminal sanction.

But to say this is only a civil sanction, what we're talking about here is depriving, you know, tens of millions of Americans of being able to vote for the candidate of their choice. There are certain circumstances in which Section 3 is going to apply, but I think we have to be very careful about this, because if we adopt a broad interpretation of what "engaging in an insurrection" means, then there's going to be no end of the mischief of people going in and challenging the eligibility of their political opponents to run whenever they engaged in, or apparently according to Professor Magliocca, even gave, you know, verbal support to political riots, which unfortunately are relatively common in the United States. And I think we need to have definitions of terms like insurrection that distinguish them from mere riots.

Part III

CHAKRABARTI: Today we're talking about the Section 3 of the 14th amendment to the Constitution of the United States of America and whether it applies to Donald Trump. I'm joined today by Gerard Magliocca. He's a professor of law at Indiana University and by Michael McConnell, professor and director of the Constitutional Law Center at Stanford Law School.

And Professor Magliocca, I'll come back to you in just a moment, but Professor McConnell, you left us with a really interesting question about the need for clearer definitions around the rather open terms of "engage," "insurrection," "rebellion," "aid and comfort." Now I presume that at some point in time that's exactly the question that's going to be put before the United States Supreme Court. So I'd like to lean on your experience in the Tenth Circuit and the Appellate Court because you had been asked for many years to apply the same sort of legal interpretation to many cases that came before you. So, first of all, how would you define, in this case, "insurrection" or "rebellion?"

MCCONNELL: First, I have to say that this is only speculation because the only concrete example we have of an insurrection under Section 3 was the Civil War and we all know what that looked like. That was 15 states out of the Union ripping up the Constitution, writing their own Constitution, making war against the United States, overturning the government. And I'm not saying that every insurrection under Section 3 has to be like the Civil War, but that is our only actual model. So it certainly should be closer to that than a mere riot which we have with alarming frequency here, where people do use violence to disrupt governmental operations to occupy government courthouses to prevent the enforcement of the law in the interest of trying to pressure the government to take some sort of action that they want or often just to express anger.

And here, I think there's a very good argument that the people on January 6 were not trying to overthrow the United States government. They were trying to put pressure improperly and illegally, but to put pressure on the Congress not to count — to count the votes in the way that they thought would be proper, which we know would have been improper.

The key point to think about here is that insurrection is a crime, but not one of the participants in January 6 has been charged with the crime of insurrection. The Department of Justice has brought criminal charges against several hundred people and several criminal charges against Donald Trump. None of them have been charged with insurrection. Now, I don't know, but I assume that the Department of Justice has more access to all of the evidence and has thought this through. They had every incentive to charge these people with insurrection and they didn't. I have to assume that they had a reason not to do that, and my guess is that they didn't think that the charges would stick because this probably did not rise to the level of an insurrection under well the statute is 18 USC 2383 and therefore Section 3 as well.

CHAKRABARTI: Well, Professor Magliocca, I'll turn back to you for a response. But I also will note — and again I am not the legal scholar here — but as I see the text of Section 3 in front of me, it doesn't necessarily say must have been charged with insurrection or found — been convicted thereof, but your response, Professor Magliocca, to what Professor McConnell's saying.

MAGLIOCCA: Yeah. So first, let me say it's a pleasure to discuss this issue with Professor McConnell. I respect his work very much. I agree with him that first of all, we need to be very careful about not having too broad a definition of insurrection. And second, I agree that mere verbal support of an insurrection is not enough, unless that verbal support actually is incitement under the standard articulated by the Supreme Court in Brandenburg.

Third, I will point out that, yes, you don't need a criminal charge or conviction for Section 3 to apply. None of the individuals disqualified after the Civil War were charged with a crime, or convicted of a crime. My understanding is that really nobody has been charged with insurrection since the Civil War. Thus I can understand why there would be some hesitancy in kind of bringing that charge out if you're a prosecutor, but that's a different question from whether you think it might apply here.

I would add just one other note, which is I think that you can distinguish an insurrection in part from a riot because Section 3 contemplates that the insurrection must be against the Constitution rather than against just the law or any private property, for example. And the crowd in question on January 6 was disrupting a constitutionally mandated proceeding under the 12th Amendment. That puts it on a different plane from any number of other riots or even perhaps an attack on the Capitol when the Congress is just meeting to do ordinary business. So I think a narrow definition of insurrection under Section 3 can still encompass and ought to still encompass what occurred on January 6.

CHAKRABARTI: Now, just for clarification for folks, Brandenburg, the case that Professor Magliocca just cited is Brandenburg v. Ohio from 1969, where the Supreme Court found or ruled that the government may forbid incitement when it's speech directed at inciting or producing imminent lawless action. So that's the case that the professor was referring to there.

Michael McConnell, I want to get to the second major part of why you say people should be considering this moment with some caution and that is the denying voters the choice that if Trump were somehow removed from the ballot in the states — and of course that action would have to happen in the states, which is an interesting point to think about as well — that it would somehow be antidemocratic, you said. First of all, tell me more about that.

And second of all, if there's ever agreement about the nature and import of Trump's participation in what led to January 6, is it terribly antidemocratic to prevent someone from appearing on the ballot who has already expressed and acted in a way that is dangerous, damaging, and undermining to the Constitution of the United States?

MCCONNELL: First, let me make clear, I agree with Professor Magliocca that Section 3 does not require that anyone, Donald Trump or anyone else, have been charged and convicted of the crime of insurrection. My point is simply that the people who have the evidence of everything, are in the best position to judge whether Donald Trump and the others committed an insurrection, namely the Department of Justice, have apparently come to the conclusion that such a charge wouldn't stick. Now, the point about democracy here is, you know, I don't really care about Donald Trump. He's not my guy. I don't, I don't support him. But I do care about voters of the United States being able to cast votes for the candidates of their choice.

When you look around the world, one of the most common ways in which unfree countries managed to prop their regimes up is by disqualifying the opposing candidates from being able to run. We have never done that in the United States. And, you know, I'm not saying never. I'm just saying that this is not a path that we want to go down easily. We want to be extremely careful before making that step because in a country like ours our general judgment is that it is the voters of the United States who should be able to assess whether someone is dangerous or too much of a risk or whatever. These are points of real contention. You cannot just say that Donald Trump is a bad man and has done bad things and therefore should be excluded. That's a judgment for the American people to make.

CHAKRABARTI: Point taken. But again, my layperson's reading of the 14th Amendment isn't that people are just saying that the person under question would have had to, A, take an oath in the past to protect the Constitution of the United States, and then, however you define it, either engaged in or aided in or offered comfort to those who were engaging in an insurrection. So it's slightly more specific than that.

But Professor Magliocca, I think Professor McConnell is bringing up an extremely important point. That in fact it's the need for interpretation of the language of Section 3 that leaves it open to being applied to, in future, to political enemies, essentially. That we could take a major step down that slippery slope where suddenly the Constitution becomes weaponized by party against party to keep people off the ballots, to deny voters choice, and to essentially become more antidemocratic rather than a system in which the prosecution, excuse me, the Constitution is protected. What do you think?

MAGLIOCCA: Well, a couple of thoughts. One is that if Donald Trump had been convicted in his second impeachment trial, presumably he would have been disqualified from serving again. Because he was already out of office so that would have been kind of the only point of a conviction, and then people wouldn't have been able to vote for him in this election. So, it can't be that we're always against that. It has to be perhaps that you think maybe an impeachment trial is the more appropriate forum or method of doing this than a Supreme Court decision under Section 3.

The second thing to say is that, look, there are risks to disqualifying Donald Trump, and I think Professor McConnell has articulated them well. There are also risks in not disqualifying him. In the sense that you could be encouraging further insurrections or riots or however you prefer to describe it by essentially saying there's really not much in the way of accountability for engaging in that kind of behavior. That is to say, there were arguments during the impeachment trials that Donald Trump should not be convicted because that would also set a problematic precedent in one way or another. Well, so far it would seem like we're facing more of the downsides of those decisions rather than the upsides of avoiding the whatever consequences you think would have been problematic flowing from an impeachment conviction. So I think those just have to be weighed and that's something that we're all going to be doing over the next several months.

CHAKRABARTI: Yeah, and we'll probably be doing it even more so because there already is the inkling of some court action around this. Because last Wednesday in Colorado, a lawsuit was filed by the Washington based watchdog group Citizens for Responsibility and Ethics in Washington, also called CREW. They are representing six Republican and unaffiliated voters in Colorado. And their lawsuit challenges Trump's eligibility to appear on the ballot in Colorado. Noah Bookbinder is the president of CREW, and he told us a bit more about what's happening in Colorado.

NOAH BOOKBINDER: What we're really hoping for and planning for and what we think will happen is that we will be able very quickly to get into court and make the case. Uh, we're not looking for a judge or any official to make an arbitrary decision. Uh, we are prepared to put up witnesses and evidence and make a comprehensive case that this was an insurrection that Donald Trump engaged in it. And have a judge rule that Donald Trump is constitutionally disqualified, and that the Secretary of State of Colorado is compelled to remove him from or keep him off of the ballot in Colorado.

CHAKRABARTI: Bookbinder says Colorado is just the first state where they filed a lawsuit. There will be more, but he was unwilling to tell us which states were on their list. What's likely to happen, however, is that the case will get kicked up to the Supreme Court, possibly. And if the court decides to hear it, it's there that a decision would be made as to whether Section 3 of the 14th Amendment applies to Donald Trump.

BOOKBINDER: If we are successful in these cases, in this case, and it does go up to the Supreme Court, we really believe and we think the chances of that are high. Uh, obviously there's no knowing what a court will do, but we think the evidence is very strong. We think the Supreme Court is going to be willing to listen and give it a fair hearing. And it's very hard to predict what they will do.

CHAKRABARTI: That's Noah Bookbinder, president of Citizens for Responsibility and Ethics in Washington. Well, we've got only about a minute left, unfortunately, so Professor McConnell I'm going to give you the last word here. What's your reaction to the fact that there is at least one case, if not more, pushing this question about Section 3 currently before state courts?

MCCONNELL: We haven't even talked today about how Section 3 is to be implemented. There are a host of procedural complications. I'm not an expert on Colorado civil procedure, but I gather that there are very serious questions about whether this organization can bring the lawsuit at this premature moment that the case may not be ripe. There's the further problem that we're talking about running for a placement on the Republican ballot, the Republican convention is going to decide who its nominee is and even if Trump were to be thrown off the ballot in Colorado or elsewhere it doesn't solve the problem because the Republican convention is free to nominate whomever they want.

This program aired on September 11, 2023.


Hilary McQuilkin Producer, On Point
Hilary McQuilkin is a producer for On Point.


Meghna Chakrabarti Host, On Point
Meghna Chakrabarti is the host of On Point.



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